Professional Documents
Culture Documents
Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971)
Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971)
Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971)
274
91 S.Ct. 1909
29 L.Ed.2d 473
San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3
L.Ed.2d 775 (1959), established the general principle that the National Labor
Relations Act pre-empts state and federal court jurisdiction to remedy conduct
that is arguably protected or prohibited by the Act. That decision represents the
watershed in this Court's continuing effort to mark the extent to which the
maintenance of a general federal law of labor relations combined with a
centralized administrative agency to implement its provisions necessarily
supplants the operation of the more traditional legal processes in this field. We
granted certiorari in this case, 397 U.S. 1006, 90 S.Ct. 1232, 25 L.Ed.2d 419
(1970), because the divided decision of the Idaho Supreme Court demonstrated
the need for this Court to provide a fuller explication of the premises upon
which Garmon rests and to consider the extent to which that decision must be
taken to have modified or superseded this Court's earlier efforts to treat with the
knotty pre-emption problem.
'All present employees covered by this contract shall become members of the
ASSOCIATION (Union) not later than thirty (30) days following its effective
date and shall remain members as a condition precedent to continued
employment. This section shall apply to newly hired employees thirty (30) days
from the date of their employment with the COMPANY.' App. 88.
'All dues * * * of the members of this Association are due and payable on the
first day of each month for that month * * *. They must be paid by the fifteenth
of the month in order to continue the member in good standing. * * * A
member in arrears for his dues * * * after the fifteenth day of the month is not
in good standing * * * and where a member allows his arrearage * * * to run
into the second month before paying the same, he shall be debarred from
benefits for one month after payment. Where a member allows his arrearage * *
* to run over the last day of the second month without payment, he does thereby
suspend himself from membership in this Association * * *. Where agreements
with employing companies provide that members must be in continuous good
financial standing, the member in arrears one month may be suspended from
membership and removed from employment, in compliance with the terms of
the agreement.' App. 9192.
Prior to September 1959, Lockridge's dues had been deducted from his
paycheck by Greyhound, pursuant to a checkoff arrangement. During that year,
however, Lockridge and a few other employees were released at their request
from the checkoff, and thereby became obligated to pay their dues directly to
the Union's office in Portland, Oregon. On November 2, 1959, C. A. Bankhead,
the treasurer and financial secretary of the union local, suspended Lockridge
from membership on the sole ground that since respondent had not yet paid his
October dues he was therefore in arrears contrary to 91. Bankhead
simultaneously notified Greyhound of this determination and requested that
Lockridge be removed from employment. Greyhound promptly complied.
Lockridge's wife received notice of the suspension from membership in early
November, while her husband was on vacation, and on November 10, 1959,
This chain of events, combined with the disparity between the above-quoted
terms of the collective-bargaining agreement and the union constitution and
general laws generated this lawsuit. Lockridge has contended, and the Idaho
courts have so held, that because he was less than two months behind in his
payment of dues, respondent had not yet 'suspended himself from membership'
within the meaning of the Union's rules, but instead had merely ceased to be a
'member in good standing.' And, because the collective-bargaining agreement
required only that employees 'remain members,' those courts held that neither
that agreement nor the final sentence of 91 justified the Union's action in
procuring Lockridge's discharge. Therefore, the Idaho courts have held,
Lockridge's dismissal violated a promise, implied in law, that the Union would
not seek termination of his employment unless he was sufficiently derelict in
his dues payments to subject him to loss of his job under the terms of the
applicable collective-bargaining agreement.
Although the trial court made no formal findings of fact on this score, 2 it
appears like that the Union procured Lockridge's dismissal in the mistaken
belief that the applicable union security agreement with Greyhound did, in fact,
require employees to remain members in good standing and that the Union
insisted on what it thought was a technically valid position because it was
piqued by Lockridge's obtaining his release from the checkoff. The trial court
did find specifically that 'almost without exception' it had been the past practice
of this local division of the Union merely to suspend delinquent members from
service, rather than to strip them of membership, and to put them back to work
without loss of seniority when their dues were paid.
10
11
In 1965 Lockridge filed a second amended complaint which has since served as
the basis for this lawsuit. Its first count alleged that
12
13
14
15
The complaint sought damages in the amount of $212,000 'and such other and
further relief as to the court may appear meet and equitable in the premises.'
Ibid.
16
After trial, the Idaho District Court found the facts as stated above and held that
they did, indeed, amount to a breach of contract. The court felt itself bound by
the prior determination of the Idaho Supreme Court to consider that it might
properly exercise jurisdiction over the controversy and to 'decide (the) case on
the theories of' International Ass'n of Machinists v. Gonzales, supra.
Consequently, the trial judge concluded that Lockridge was entitled to a decree
restoring him to membership in the Union, 'although plaintiff has never sought
such remedy.' Lockridge was also awarded $32,678.56 as compensation for
wages actually lost due to his dismissal from Greyhound's employ, but his
requests for future damages arising from continued loss of employment,
compensation for loss of seniority or fringe benefits, and punitive damages
were all denied. On appeal the Idaho Supreme Court affirmed, over one
dissenting vote, except that it also ordered restoration of respondent's seniority
rights. 93 Idaho 294, 460 P.2d 719 (1969). Having granted certiorari for the
reasons stated at the outset of this opinion, we now reverse.
II
A.
17
On the surface, this might appear to be a routine and simple case. Section 8(b)
(2) of the National Labor Relations Act, as amended, 61 Stat. 141, 29 U.S.C.
158(b)(2), makes it an unfair labor practice for a union
18
19
20
21
Further, in San Diego Building Trades Council v. Garmon, 359 U.S. at 245, 79
S.Ct., at 780, we held that the National Labor Relations Act pre-empts the
jurisdiction of state and federal courts to regulate conduct 'arguably subject to
7 or 8 of the Act.' On their face, the above-quoted provisions of the Act at
least arguably either permit or forbid the union conduct dealt with by the
judgment below. For the evident thrust of this aspect of the federal statutory
scheme is to permit the enforcement of union security clauses, by dismissal
from employment, only for failure to pay dues. Whatever other sanctions may
be employed to exact compliance with those internal union rules unrelated to
dues payment, the Act seems generally to exclude dismissal from employment.
See Radio Officers' Union, etc. v. NLRB, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed.
455 (1954). Indeed, in the course of rejecting petitioner's pre-emption
argument, the Idaho Supreme Court stated that, in its opinion, the Union 'did
most certainly violate 8(b)(1)(A), did most certainly violate 8(b) (2) * * * and
probably caused the employer to violate 8(a)(3).' 93 Idaho, at 299, 460 P.2d, at
724. Thus, given the broad pre-emption principle enunciated in Garmon, the
want of state court power to resolve Lockridge's complaint might well seem to
follow as a matter of course.
22
23
We do not believe that any of these arguments suffice to overcome the plain
purport of Garmon as applied to the facts of this case. However, we have
25
26
As it appears to us, nothing could serve more fully to defeat the congressional
goals underlying the Act than to subject, without limitation, the relationships it
seeks to creat to the concurrent jurisdiction of state and federal courts free to
apply the general local law. Nor would an approach suffice that sought merely
to avoid disparity in the content of proscriptive behavioral rules. As the Court
observed in Garner v. Teamsters, Chauffeurs and Helpers Local Union, 346
U.S. 485, 490491, 74 S.Ct. 161, 165166, 98 L.Ed. 228 (1953), Congress in
establishing overriding federal supervision of labor law
27
'did not merely lay down a substantive rule of law to be enforced by any
tribunal competent to apply law generally to the parties. It went on to confide
29
The rationale for pre-emption, then, rests in large measure upon our
determination that when it set down a federal labor policy Congress plainly
meant to do more than simply to alter the then-prevailing substantive law. It
sought as well to restructure fundamentally the processes for effectuating that
policy, deliberately placing the responsibility for applying and developing this
comprehensive legal system in the hands of an expert administrative body
rather than the federalized judicial system.5 Thus, that a local court, while
adjudicating a labor dispute also within the jurisdiction of the NLRB, may
purport to apply legal rules identical to those prescribed in the federal Act or
may eschew the authority to define or apply principles specifically developed
to regulate labor relations does not mean that all relevant potential for
debilitating conflict is absent.
30
A second factor that has played an important role in our shaping of the preemption doctrine has been the necessity to act without specific congressional
direction. The precise extent to which state law must be displaced to achieve
those unifying ends sought by the national legislature has never been
determined by the Congress. This has, quite frankly, left the Court with few
available options. We cannot declare pre-empted all local regulation that
This is not to say, however, that these inherent limitations on this Court's ability
to state a workable rule that comports reasonably with apparent congressional
objectives are necessarily self-evident. In fact, varying approaches were taken
by the Court in initially grappling with this pre-emption problem. Thus, for
example, some early cases suggested the true distinction lay between judicial
application of general common law, which was permissible, as opposed to state
rules specifically designed to regulate labor relations, which were pre-empted.
See, e.g., International Union, United Automobile, etc., Workers v. Russell,
356 U.S. 634, 645, 78 S.Ct. 932, 939, 2 L.Ed.2d 1030 (1958). Others made preemption turn on whether the States purported to apply a remedy not provided
for by the federal scheme, e.g., Weber v. Anheuser-Busch, Inc., 348 U.S. 468,
479 480, 75 S.Ct. 480, 487488, 99 L.Ed. 546 (1955), while in still others the
Court undertook a thorough scrutiny of the federal Act to ascertain whether the
state courts had, in fact, arrived at conclusions inconsistent with its provisions,
e.g., International Union, United Automobile Workers v. Wisconsin
Employment Relations Bd., 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (1949).
For the reasons outlined above none of these approaches proved satisfactory,
however, and each was ultimately abandoned. It was, in short, experiencenot
pure logicwhich initially taught that each of these methods sacrificed
important federal interests in a uniform law of labor relations centrally
administered by an expert agency without yielding anything in return by way of
predictability of ease of judicial application.
32
The failure of alternative analyses and the interplay of the foregoing policy
considerations, then, led this Court to hold in Garmon, 359 U.S., at 244, 79
S.Ct., at 779:
33
'When it is clear or may fairly be assumed that the activities which a State
purports to regulate are protected by 7 of the National Labor Relations Act, or
constitute an unfair labor practice under 8, due regard for the federal
enactment requires that state jurisdiction must yield. To leave the States free to
regulate conduct so plainly within the central aim of federal regulation involves
too great a danger of conflict between power asserted by Congress and
requirements imposed by state law.'
C
34
Upon these premises, we think that Garmon rather clearly dictates reversal of
the judgment below. None of the propositions asserted to support that judgment
can withstand an application, in light of those factors that compelled its
promulgation, of the Garmon rule.
35
Assuredly the proposition that Lockridge's complaint was not subject to the
exclusive jurisdiction of the NLRB because it charged a breach of contract
rather than an unfair labor practice is not tenable. Pre-emption, as shown above,
is designed to shield the system from conflicting regulation of conduct. It is the
conduct being regulated, not the formal description of governing legal
standards, that is the proper focus of concern. Indeed, the notion that a relevant
distinction exists for such purposes between particularized and generalized
labor law was explicitly rejected in Garmon itself. 359 U.S., at 244, 79 S.Ct., at
779.
36
The second argument, closely related to the first, is that the state courts, in
resolving this controversy, did deal with different conduct, i.e., interpretation of
contractual terms, than would the NLRB which would be required to decide
whether the Union discriminated against Lockridge. At bottom, of course, the
Union's action in procuring Lockridge's dismissal from employment is the
conduct which Idaho courts have sought to regulate. Thus, this second point
demonstrates at best that Idaho defines differently what sorts of such union
conduct may permissibly be proscribed. This is to say either that the regulatory
schemes, state the federal, conflict (in which case pre-emption is clearly called
for) or that Idaho is dealing with conduct to which the federal Act does not
speak. If the latter assertion was intended, it is not accurate. As pointed out in
Part IIA, supra, the relevant portions of the Act operate to prohibit a union
from causing or attempting to cause an employer to discriminate against an
employee because his membership in the union has been terminated 'on some
ground other than' his failure to pay those dues requisite to membership. This
has led the Board routinely and frequently to inquire into the proper
construction of union regulations in order to ascertain whether the union
properly found an employee to have been derelict in his dues-paying
responsibilities, where his discharge was procured on the asserted grounds of
nonmembership in the union. See e.g., NLRB v. Allied Independent Union, 238
F.2d 120 (CA7 1956); NLRB v. Leece-Neville Co., 330 F.2d 242 (CA6 1964);
Communications Workers v. NLRB, 215 F.2d 835 (CA2 1954); NLRB v.
Spector Freight System, Inc., 273 F.2d 272 (CA8 1960). See generally 3 CCH
Lab.L.Rep. 4525 (Labor Relations). That a union may in good faith have
misconstrued its own rules has not been treated by the Board as a defense to a
claimed violation of 8(b)(2). In the Board's view, it is the fact of
misapplication by a union of its rules, not the motivation for that discrimination,
that constitutes an unfair labor practice. See, in addition to the authorities cited
above, International Union of Electrical, Radio & Machine Workers v. NLRB,
113 U.S.App.D.C. 342, 347, 307 F.2d 679, 684 (1962), and Local 357,
International Brotherhood of Teamsters v. NLRB, 365 U.S. 667, 681, 81 S.Ct.
835, 842, 6 L.Ed.2d 11 (1961) (concurring opinion).
37
From the foregoing, then, it would seem that this case indeed represents one of
the clearest instances where the Garmon principle, properly understood, should
operate to oust state court jurisdiction. There being no doubt that the conduct
here involved was arguably protected by 7 or prohibited by 8 of the Act, the
full range of very substantial interests the pre-emption doctrine seeks to protect
is directly implicated here.
38
However, a final strand of analysis underlies the opinion of the Idaho Supreme
Court, and the position of respondent, in this case. Our decision in International
Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d
1018 (1958), it is argued, fully survived the subsequent reorientation of preemption doctrine effected by the Garmon decision, providing, in effect, an
express exception for the exercise of judicial jurisdiction in cases such as this.
39
The fact situation in Gonzales does resemble in some relevant regards that of
the instant case. There the California courts had entertained a complaint by an
individual union member claiming he had been expelled from his union in
violation of rights conferred upon him by the union's constitution and bylaws,
which allegedly constituted a contract between him and his union. Gonzales
prevailed on his breach-of-contract theory and was awarded damages for wages
lost due to the revocation of membership as well as a decree providing for his
reinstatement in the union. This Court confirmed the California courts' power to
award the monetary damages, the only aspect of the action below challenged in
this Court. The primary rationale for the result reached was that California
should be competent to 'fill out,' 356 U.S., at 620, 78 S.Ct., at 925, the
reinstatement remedy by utilizing 'the comprehensive relief of equity,' id., at
621, 78 S.Ct., at 925, which the Board did not fully possess. Secondarily, it was
said that the lawsuit 'did not purport to remedy or regulate union conduct on the
ground that it was designed to bring about employer discrimination against an
employee, the evil the Board is concerned to strike at as an unfair labor practice
under 8(b)(2).' Id., at 622, 78 S.Ct., at 926.
40
41
42
Borden had sued his union in state courts, alleging that the union had arbitrarily
refused to refer him to a particular job which he had lined up. He recovered
damages, based on lost wages, on the grounds that this conduct constituted both
tortious interference with his right to contract for employment and a breach of
promise, implicit in his membership arrangement with the union, not to
discriminate unfairly against any member or deny him the right to work. Perko
had obtained a large money judgment in the Ohio courts on proof that the union
had conspired, without cause, to deprive him of employment as a foreman by
demanding his discharge from one such position he had held and representing
to others that his foreman's rights had been suspended. We held both Perko's
and Borden's judgments inconsistent with the Garmon rule essentially for the
same reasons we have concluded that Lockridge could not, consistently with
the Garmon decision, maintain his lawsuit in the state courts. We further held
there was no necessity to 'consider the present vitality of (the Gonzales)
rationale in the light of more recent decisions,' because in those cases, unlike
Gonzales, 'the crux of the action(s) * * * concerned alleged interference with
the plaintiff's existing or prospective employment relations and was not
directed to internal union matters.' Because no specific claim for restoration of
membership rights had been advanced, 'there was no permissible state remedy
to which the award of consequential damages for loss of earnings might be
subordinated.' Perko, 373 U.S., at 705, 83 S.Ct., at 1431. See also Borden, 373
U.S., at 697, 83 S.Ct., at 1427.
43
In sum, what distinguished Gonzales from Borden and Perko was that the
former lawsuit 'was focused on purely internal union matters,' Borden, supra, at
697, 83 S.Ct., at 1427, a subject the National Labor Relations Act leaves
principally to other processes of law. The possibility that, in defining the scope
of the union's duty to Gonzales the state courts would directly and consciously
implicate principles of federal law was at best tangential and remote. In the
instant case, however, this possibility was real and immediate. To assess the
legality of his union's conduct toward Gonzales the California courts needed
only to focus upon the union's constitution and by-laws. Here, however,
Lockridge's entire case turned upon the construction of the applicable union
security clause, a matter as to which, as shown above, federal concern is
pervasive and its regulation complex. The reasons for Gonzales' deprivation of
union membership had nothing to do with matters of employment, while
Lockridge's cause of action and claim for damages were based solely upon the
procurement of his discharge from employment. It cannot plausibly be argued,
in any meaningful sense, that Lockridge's lawsuit 'was focused on purely
internal union matters.' Although nothing said in Garmon necessarily suggests
that States cannot regulate the general conditions which unions may impose on
their membership, it surely makes crystal clear that Gonzales does not stand for
the proposition that resolution of any union-member conflict is within state
competence so long as one of the remedies provided is restoration of union
membership. This much was settled by Borden and Perko, and it is only upon
such an unwarrantably broad interpretation of Gonzales that the judgment
below could be sustained.
III
44
The pre-emption doctrine we apply today is, like any other purposefully
administered legal principle, not without exception. Those same considerations
that underlie Garmon have led this Court to permit the exercise of judicial
In his brief before this Court, respondent has argued for the first time since this
lawsuit was started that two of these exceptions to the Garmon principle
independently justify the Idaho courts' exercise of jurisdiction over this
controversy. First, Lockridge contends that his action, properly viewed, is one
to enforce a collective-bargaining agreement. Alternatively, he asserts the suit,
in essence, was one to redress petitioner's breach of its duty of fair
representation. As will be seen, these contentions are somewhat intertwined.
46
47
Our cases also clearly establish that individual union members may sue their
employers under 301 for breach of a promise embedded in the collectivebargaining agreement that was intended to confer a benefit upon the individual.
Smith v. Evening News, supra. Plainly, however, this is not such a lawsuit.
This Court has further held in Humphrey v. Moore, supra, that 301 will
support, regardless of otherwise applicable pre-emption considerations, a suit in
the state courts by a union member against his union that seeks to redress union
interference with rights conferred on individual employees by the employer's
promises in the collective-bargaining agreement, where it is proved that such
interference constituted a breach of the duty of fair representation. Indeed, in
Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), we held that
an action seeking damages for injury inflicted by a breach of a union's duty of
fair representation was judicially cognizable in any event, that is, even if the
conduct complained of was arguably protected or prohibited by the National
Labor Relations Act and whether or not the lawsuit was bottomed on a
collective agreement. Perhaps Count One of Lockridge's second amended
complaint could be construed to assert either or both of these theories of
recovery. However, it is unnecessary to pass upon the extent to which Garmon
would be inapplicable if it were shown that in these circumstances petitioner
not only breached its contractual obligations to respondent, but did so in a
manner that constituted a breach of the duty of fair representation. For such a
claim to be made out, Lockridge must have proved 'arbitrary or bad-faith
conduct on the part of the Union.' Vaca v. Sipes, supra, at 193, 87 S.Ct., at 918.
There must be 'substantial evidence of fraud, deceitful action or dishonest
conduct.' Humphrey v. Moore, supra, 375 U.S., at 348, 84 S.Ct., at 371.
Whether these requisite elements have been proved is a matter of federal law.
Quite obviously, they were not even asserted to be relevant in the proceedings
below. As the Idaho Supreme Court stated in affirming the verdict for
Lockridge, '(t)his was a misinterpretation of a contract. Whatever the
underlying motive for expulsion might have been, this case has been submitted
and tried on the interpretation of the contract, not on a theory of discrimination.'
93 Idaho, at 303304, 460 P.2d, at 728729. Thus, the trial judge's
conclusion of law in sustaining Lockridge's claim specifically incorporates the
assumption that the Union's 'acts * * * were predicated solely upon the ground
that (Lockridge) had failed to tender periodic dues in conformance with the
requirements of the union Constitution and employment contract as they
interpreted (it) * * *.' App. 66. Further, the trial court excluded as irrelevant
petitioner's proffer of evidence designed to show that the Union's interpretation
of the contract was reasonably based upon its understanding of prior collectivebargaining agreements negotiated with Greyhound. Tr. Trial, at 259260.
49
Nor can it be fairly argued that our resolution of respondent's final contentions
entails simply attaching variegated labels to matters of equal substance. We
have exempted 301 suits from the Garmon principle because of the evident
congressional determination that courts should be free to interpret and enforce
collective-bargaining agreements even where that process may involve
condemning or permitting conduct arguably subject to the protection or
prohibition of the National Labor Relations Act. The legislative determination
that courts are fully competent to resolve labor relations disputes through
focusing on the terms of a collective-bargaining agreement cannot be said to
sweep within it the same conclusion with regard to the terms of unionemployee contracts that are said to be implied in law. That is why the principle
of Smith v. Evening News is applicable only to those disputes that are governed
by the terms of the collective-bargaining agreement itself.
50
IV
51
the task of federal or state courts to make such determinations. Secondly, in our
explication of the reasons for the Garmon rule, and the various exceptions to it,
we noted that, although largely of judicial making, the labor relations
preemption doctrine finds its basic justification in the presumed intent of
Congress. While we do not assert that the Garmon doctrine is without
imperfection, we do think that it is founded on reasoned principle and that until
it is altered by congressional action or by judicial insights that are born of
further experience with it, a heavy burden rests upon those who would, at this
late date, ask this Court to abandon Garmon and set out again in quest of a
system more nearly perfect. A fair regard for considerations of stare decisis and
the coordinate role of the Congress in defining the extent to which federal
legislation pre-empts state law strongly support our conclusion that the basic
tenets of Garmon should not be disturbed.9
52
53
Reversed.
54
55
56
57
He has six months within which to file an unfair labor practice charge with the
Regional Director and serve it upon the other party. If he does not file within
six months, the claim is barred. 29 U.S.C. 160(b). The charge must be in
writing and contain either a declaration that the contents are true to the best of
his knowledge, or else a notarization. 29 CFR 101.2. When the charge is
received, it is filed, docketed, and given a number (29 CFR 101.4) and
Following the investigation, the Regional Director makes his decision. 'If
investigation reveals that there has been no violation of the National Labor
Relations Act or the evidence is insufficient to substantiate the charge, the
regional director recommends withdrawal of the charge by the person who
filed.' 29 CFR 101.5. If the complaining party does not withdraw the charge,
the Regional Director dismisses it. 29 CFR 101.6. Following dismissal, the
complainant has 10 days to appeal the decision to the General Counsel who
reviews the decision. Ibid. If the General Counsel holds against the
complaining party and refuses to issue an unfair labor practice complaint, the
decision is apparently unreviewable. A. Cox & D. Bok, Labor Law 138 (7th ed.
1969); General Drivers, Chauffeurs and Helpers, Local 886 v. NLRB, 10 Cir.,
179 F.2d 492.
59
60
'(T)he Board may also fail to determine the status of the disputed conduct by
declining to assert jurisdiction, or by refusal of the General Counsel to file a
charge, or by adopting some other disposition which does not define the nature
of the activity with unclouded legal significance. This was the basic problem
underlying our decision in Guss v. Utah Labor Relations Board, 353 U.S. 1, 77
S.Ct. 598, 609, 1 L.Ed.2d 601. In that case we held that the failure of the
National Labor Relations Board to assume jurisdiction did not leave the States
free to regulate activities they would otherwise be precluded from regulating. It
follows that the failure of the Board to define the legal significance under the
Act of a particular activity does not give the States the power to act.' 359 U.S.,
at 245246, 79 S.Ct., at 780.
61
From this it follows that if the General Counsel refuses to act, no one may act
and the employee is barred from relief in either state or federal court.2 See Day
v. Northwest Division 1055, 238 Or. 624, 389 P.2d 42, cert. denied, 379 U.S.
878, 85 S.Ct. 145, 13 L.Ed.2d 86.
62
When we tell a sole individual that his case is 'arguably' within the jurisdiction
of the Board, we in practical effect deny him any remedy. I repeat what I said
before, 'When the basic dispute is between a union and an employer, any hiatus
that might exist in the jurisdictional balance that has been struck can be filled
by resort to economic power. But when the union member has a dispute with
his union, he has no power on which to rely.' Local 100 of United Association
of Journeymen and Apprentices v. Borden, 373 U.S. 690, 700, 83 S.Ct. 1423,
1429, 10 L.Ed.2d 638 (dissenting).
63
64
The complaint in this state court suit sought damages from the union for its
action in causing the employer to discharge him pursuant to the union-security
clause in the collective-bargaining agreement. It also asked for 'such other and
further relief as to the court may appear meet and equitable in the premises.'
65
66
The case for relief by Lockridge in a state court is as strong as, if not stronger
than, the case of Gonzales. Lockridge, who was refused employment because
of the union's representations to the employer, had never been expelled from
the union. On the other hand, Gonzales had been expelled from the union
because he brought assault and battery charges against a representative of the
union. He sued for restoration of membership and for damages. The state court
found that the union had breached its contract with the employee and ordered
him reinstated and awarded him damages. 356 U.S., at 618, 78 S.Ct., at 924.
We sustained the state court, saying that 'the subject matter of the litigation * *
* was the breach of a contract governing the relations' between the employee
and the union and that the 'suit did not purport to remedy or regulate union
conduct on the ground that it was designed to bring about employer
discrimination against an employee, the evil the Board is concerned to strike at
as an unfair labor practice under 8(b)(2).' Id., at 621-622, 78 S.Ct., at 926. We
held that in those circumstances the state court had power to order the
employee reinstated to membership and was not deprived of jurisdiction to 'fill
out' his remedy by awarding damages. Id., at 620621, 78 S.Ct., at 925.
67
Whether in the present case the discharge of Lockridge was 'arguably' an unfair
labor practice within the meaning of Garmon is irrelevant. The reason is that
the Board would not have the power to supply the total remedy which
Lockridge seeks even if the employer had committed an unfair labor practice.
True, the Board has authority to award back pay3 but it has no authority to
award damages beyond back pay. Moreover, under Steele v. Louisville & N.R.
Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, the union is in a fiduciary
relation to its members. As we stated in Vaca v. Sipes, 386 U.S. 171, 177, 87
S.Ct. 903, 910, 17 L.Ed.2d 842:
68
'Under this doctrine, the exclusive agent's statutory authority to represent all
members of a designated unit includes a statutory obligation to serve the
interests of all members without hostility or discrimination toward any, to
exercise its discretion with complete good faith and honesty, and to avoid
arbitrary conduct.'
69
We emphasized in the Sipes case that the Garmon rule was 'not applicable to
cases involving alleged breaches of the union's duty of fair representation.' Id.,
at 181, 87 S.Ct., at 912. We held that in this type of case Congress did not
intend 'to oust the courts of their traditional jurisdiction to curb arbitrary
conduct by the individual employee's statutory representative.' Id., at 183, 87
S.Ct., at 913.
70
71
72
Where the quarrel between the employee and the union is over a particular job,
his remedy is before the Board. Local 100 of United Ass'n of Journeymen and
Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638; Local No.
207, International Ass'n of Bridge, Structural and Ornamental Iron Workers v.
Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646. But where the union
contract is breached by expulsion of the employee, as alleged in Gonzales, or
where he is wrongfully treated as no longer being a member of the union
(which is the present case) the suit lies in the state court for damages, for
declaratory or other relief that he still is a member, and for such other remedies
as may be appropriate.
73
74
Mr. Justice WHITE, with whom THE CHIEF JUSTICE joins, dissenting.
75
76
The Garmon doctrine, which is today reaffirmed and extended, has as its
touchstone the presumed congressional goal of a uniform national labor policy;
to this end, the Court has believed, the administration of that policy must
insofar as is possible be in the hands of a single, centralized agency. In many
ways I have no quarrel with this view. Many would agree that as a general
matter some degree of uniformity is preferable to the conflicting voices of 50
States, particularly in view of the structure of industrial and commercial
activities in this country. Congress determined as much when it enacted the
National Labor Relations Act (NLRA).
77
But it is time to recognize that Congress has not federalized the entire law of
labor relations, even labor-management relations, and that within the area
occupied by federal law neither Congress, this Court, nor the National Labor
Relations Board itself has, in the name of uniformity, insisted that the agency
always be the exclusive expositor of federal policy in the first instance. To put
the matter in proper perspective it will be helpful to set down some of the
important contexts in which federal law is implemented by the courts or other
institutions without the prior intervention of the Board, as well as those in
which state rather than federal law is permitted to operate. Part I, following,
undertakes this task. Against that background, Part II deals with union member
actions against their union, and Part III considers the Garmon doctrine in those
situations where the conduct complained of is arguably protected by federal
law.
78
* It is well established that the Board has jurisdiction over unfair labor
practices even though they might also be arguable violations of the collectivebargaining agreement and subject to arbitration under the terms of the contract.
See 29 U.S.C. 160(a); Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 272,
84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964); NLRB v. Strong, 393 U.S. 357, 360
361, 89 S.Ct. 541, 544545, 21 L.Ed.2d 546 (1969); NLRB v. Acme
Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). But as a
policy matter the Board will not overturn arbitration awards based on behavior
that is also an alleged unfair labor practice if the arbitration proceedings
comply with certain procedures, among which is that the arbitrator must have
given consideration to the alleged unfair labor practice. Spielberg Mfg. Co.,
112 N.L.R.B. 1080 (1955); International Harvester Co., 138 N.L.R.B. 923
(1962), enforced sub nom. Ramsey v. NLRB, 327 F.2d 784 (CA7 1964). The
Board has said:
79
80
See also Carey v. Westinghouse Elec. Corp., supra, 375 U.S., at 270272, 84
S.Ct., at 408409; Raley's Inc., 143 N.L.R.B. 256 (1963).
81
Thus, not only does Board policy allow arbitrators to pass on conduct which is
also an alleged unfair labor practice, but the Board will not consider an unfair
labor practice charge unless the arbitrator has passed on it.1 And even then, the
Board has made quite clear that its standard of review is far from de novo; it
will let stand an arbitrator's award not 'clearly repugnant' to the Act. See, e.g.,
Virginia-Carolina Freight Lines, 155 N.L.R.B. 447 (1965), where the Board
refused to uphold an arbitrator's award allowing discharge of an employee for
'disloyalty' where the 'disloyalty' consisted of seeking assistance from the
Board. The Board's standard of review for arbitration awards seems to be even
narrower than the substantial-evidence test, for the Board has not purported to
overturn awards simply on the evidence before the arbitrator. The standards
chosen by the Board operate entirely separately from the substantial-evidence
test. See 10(e), Administrative Procedure Act, 5 U.S.C. 706 (1970 ed.). In
fact, in International Harvester itself, the Board agreed to accept the arbitrator's
award 'since it plainly appears to us that the award is not palpably wrong.' To
require a wider scope of evidentiary review, said the Board, 'would mean
substituting the Board's judgment for that of the arbitrator, thereby defeating
the purposes of the Act and the common goal of national labor policy of
encouraging the final adjustment of disputes, 'as part and parcel of the
collective bargaining process." 138 N.L.R.B., at 929.
82
Congress, no less than the Board, has indicated its approval and endorsement of
the arbitral process even though this may result in controversies being
adjudicated by forums other than the Board. Section 203(d) of the Labor
Management Relations Act (LMRA), 1947, 61 Stat. 154, 29 U.S.C. 173(d),
declares:
83
84
See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 566
568, 80 S.Ct. 1343, 13451347, 4 L.Ed.2d 1403 (1960); United
Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4
L.Ed.2d 1409 (1960). See also 10(k) of NLRA, 29 U.S.C. 160(k). Indeed,
301(a) of the LMRA, 29 U.S.C. 185(a), may be considered the birthplace of
much of modern arbitration law. As the Court said in Textile Workers Union v.
Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957):
'(Section 301) expresses a federal policy that federal courts should enforce these
(arbitration) agreements on behalf of or against labor organizations and that
industrial peace can be best obtained only in that way.' Finally, this Court itself
has expressed the view, in construing federal law pursuant to 301(a), that the
policy of encouraging arbitration was sufficient to overcome considerations
The cumulative effect of all of this is that the jurisdiction of one forumin this
case, arbitrationis not displaced simply because the Board also has
jurisdiction to act. The policy of pre-emption and, to some extent, of uniformity
itself is subordinated to the greater policy of encouraging arbitration of
grievances.
86
Deference to the arbitral forum is not the only instance where arguable or
conceded unfair labor practices are excepted from the pre-emption doctrine. In
Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246
(1962), the employee brought suit under 301(a) of the LMRA, 29 U.S.C.
185(a), to enforce the collective-bargaining contract, alleging that the employer
discriminated against certain employees because of their union affiliation. The
conduct, if proved, would not only have been a violation of the contract but
would concededly have been an unfair labor practice as well. The Court
expressly rejected the Garmon doctrine in the context of such suits, holding
that, while Board jurisdiction over unfair labor practices was not displaced
when the conduct also allegedly violated the terms of the contract, neither was
the jurisdiction exclusive. This result was consistent with the expressed intent
of Congress that enforcement of collective-bargaining agreements be 'left to the
usual processes of the law,' rather than to the Board. Charles Dowd Box Co.,
Inc. v. Courtney, 368 U.S. 502, 511, 82 S.Ct. 519, 524, 7 L.Ed.2d 483 (1962).
See also Local 174, Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S.
95, 101 n. 9, 82 S.Ct. 571, 575, 7 L.Ed.2d 593 (1962); Sovern, Section 301 and
the Primary Jurisdiction of the NLRB, 76 Harv.L.Rev. 529 (1963).
87
In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), this Court
refused to apply the pre-emption doctrine to suits charging a breach of the
union's duty of fair representation, even though the Board had held that such a
breach was also an unfair labor practice. Miranda Fuel Co., 140 N.L.R.B. 181
(1962). Though one reason for this result was that the duty of unfair
representation had been for the most part developed by the judiciary rather than
the Board, the other reason was concern over the possibility of denying a
hearing to an employee who felt his individual interests had been unfairly
subordinated by the union. The Court expressed fear that, were preemption the
rule, 'the individual employee injured by arbitrary or discriminatory union
conduct could no longer be assured of impartial review of his complaint, since
the Board's General Counsel has unreviewable discretion to refuse to institute
an unfair labor practice complaint.' 386 U.S., at 182, 87 S.Ct., at 912.
89
Congress has expressly given a federal cause of action for damages to parties
injured by secondary union activity under 8(b)(4), which may be enforced by
suits brought in either state or federal court. 29 U.S.C. 187(b). The union's
activity giving rise to liability is of necessity an unfair labor practice, but
Congress elected to have the question adjudicated in court, even though the
activity might be the subject of a parallel and possibly inconsistent
determination by the Board. See Local 20 Teamsters, Chauffeurs and Helpers
Union v. Morton, 377 U.S. 252, 256, 84 S.Ct. 1253, 1256, 12 L.Ed.2d 280
(1964). Of course federal law governs such cases, at least where the union
activity is not violent; and presumably the decisions of the NLRB on secondary
activity would be consulted for guidance. But the Congress chose not to have
the Board hear such suits, even though the Board is probably far more familiar
than the courts with the variety of problems posed by secondary activity.
90
The phenomenon of the no-man's land and the conclusions that can be drawn
on pre-emption are also instructive, for they cast substantial doubt not only on
the intent of Congress but on the very foundations of Garmon itself. In Guss v.
Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957),
the Court held that States were powerless to intervene in labor disputes where
the NLRB possessed jurisdiction, even though the Board had refused to assert
its jurisdiction because of the 'predominantly local' character of the company's
operations. The Court conceded that this would likely produce 'a vast no-man's-
land, subject to regulation by no agency or court,' id., at 10, 77 S.Ct., at 603, but
insisted this was the intent of the Congress and that Congress could change the
situation if it desired. Congress did change the situation soon thereafter,
providing that the States may assert jurisdiction over any dispute where the
Board declines to do so because of the insubstantial effect on interstate
commerce. 14(c) of NLRA, as amended, 73 Stat. 541, 29 U.S.C. 164(c).
The purpose of this section was to fill the chasm created by Guss. See, e.g., 105
Cong.Rec. 6430 (Sen. Goldwater). The situation was roundly condemned by
legislators, who called it variously 'a no man's land, in which there are grievous
wrongs and no remedy under American jurisprudence as of this time,' id., at
6413 (Sen. McClellan), and 'a stench in the nostrils of justice.' Id., at 6544 (Sen.
Ervin). In short, the reaction to Guss indicates that this Court was quite wrong
in determining that the no-man's land was justified in the name of congressional
intent to achieve uniformity in law and administration.
91
Of some interest is the fact that Garmon was based upon, and expanded to a
significant degree, the rationale of Guss:
92
'It follows (from Guss) that the failure of the Board to define the legal
significance under the Act of a particular activity does not give the States the
power to act. In the absence of the Board's clear determination that an activity
is neither protected nor prohibited or of compelling precedent applied to
essentially undisputed facts, it is not for this Court to decide whether such
activities are subject to state jurisdiction. The withdrawal of this narrow area
from possible state activity follows from our decisions in Weber and Guss.' 359
U.S., at 246, 79 S.Ct., at 780. (Emphasis added.)
93
Yet five months after the announcement of the Garmon decision, Congress in
effect overruled Guss and thus at least counseled caution in applying the
Garmon rationale.
94
The provisions of 14(c), however, do not allow state jurisdiction where the
Board refuses to assert jurisdiction for 'policy' reasons, as where the General
Counsel refuses to issue a complaint because he is not convinced of the merits
of the plaintiff's cause. In such a situation, Garmon precludes state action (or
action by federal courts) because the Board's action does not define the activity
'with unclouded legal significance.' 359 U.S., at 246, 79 S.Ct., at 780. In 1965,
the Court eased the harsh strictures of Garmon in this area by holding that
reasons articulated by the General Counsel for his refusal to issue a complaint
would open the way for state action if the explanations 'squarely define the
nature of the activity' sought to be subjected to Board consideration. Hanna
Mining Co. v. District 2, Marine Engineers Beneficial Assn., 382 U.S. 181,
96
To summarize, the 'rule' of uniformity that the Court invokes today is at best a
tattered one, and at worst little more than a myth. In the name of national labor
policy, parties are encouraged by the Board, by Congress, and by this Court to
seek other forums if the unfair labor practice arises in an arbitrable dispute,
violates the collective-bargaining agreement, or otherwise qualifies as one of
the exceptions mentioned.2
98
Until today, Int'l Assn. of Machinists v. Gonzales, supra, had been thought to
stand for the proposition that Garmon did not reach cases 'when the possibility
of conflict with federal policy is * * * remote.' 356 U.S., at 621, 78 S.Ct., at
925. But with today's emasculation of Gonzales, there is probably little that
remains of it. Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657,
15 L.Ed.2d 582 (1966), was ostensibly based in part on this rationale, id., at 59
61, 86 S.Ct., at 661662, but it was equally bottomed on Laburnum
Construction and other cases upholding state power to regulate matters of
'overriding state interest' such as violence or, as in Linn, defamation. I see no
reason why this exception has not, for all practical purposes, thus expired. In
my view, however, and for the reasons set forth in Part II, Gonzales controls
this case.3
II
99
There are two broad, but overlapping, relationships among employers, labor
unions, and union members. On the one hand, there is the relationship between
employer and employee, generally termed labor-management relations, which
involves the union at virtually every step, where the employees have chosen to
be represented by one. The other relationship, union-member relations, involves
the affairs between the union and the employee as union member.
100 In enacting the NLRA in 1935, 49 Stat. 449, Congress defined and prohibited
unfair labor practices by employers. Experience under the Act showed that
labor organizations were quite as capable as employers of pernicious behavior,
and in 1947 Congress enacted the Labor Management Relations Act, 61 Stat.
136, which, among other things, protected employees and employers against
certain unfair labor practices by labor organizations that were defined by the
Act. Protection given employees, whether union members or not, was primarily
job related. Although unions were forbidden to restrain or coerce employees in
the exercise of their 7 rights, Congress expressly negated any intention to
'impair the right of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership * * *.' 29 U.S.C. 158(b)(1). The
on private property, see Taggart v. Weinacker's, Inc., 397 U.S. 223, 227, 90
S.Ct. 876, 878, 25 L.Ed.2d 240 (1970) (Burger, C.J., concurring), Broomfield,
Preemptive Federal Jurisdiction Over Concerted Trespassory Union Activity,
83 Harv.L.Rev. 552 (1970), other instances include 'quickie' strikes or slowdowns, see NLRB v. Holcombe, 325 F.2d 508 (CA 5 1963), or employees'
inaccurate complaints to state officials about sanitary conditions in the plant,
Walls Mfg. Co. v. NLRB, 116 U.S.App.D.C. 140, 321 F.2d 753 (1963), or
collective activity designed to persuade the employer to hire Negroes. NLRB v.
Tanner Motor Livery, Ltd., 349 F.2d 1 (CA 9 1965), or failure to participate in
a union check-off. Radio Officers' Union etc. v. NLRB, 347 U.S. 17, 2428,
3942, 74 S.Ct. 323, 335337, 98 L.Ed. 455 (1954).
118 There seems little point in a doctrine that, in the name of national policy,
encourages the commission of unfair labor practices, the evils which above all
else were the object of the Act. Surely the policy of seeking uniformity in the
regulation of labor practices must be given closer scrutiny when it leads to the
alternative 'solutions' of denying the aggrieved party a hearing or encouraging
the commission of a putative unfair labor practice as the price of that hearing.6
Counsel refused to initiate an unfair labor practice complaint. How much more
pressing must those considerations be where the Board is in fact barred from
regular adjudication. The 'intensely practical considerations' that we felt
governed in Vaca, 386 U.S., at 183, 87 S.Ct., at 913, seem even more practical
here, especially in view of the concern expressed in Vaca that the aggrieved
party be able to obtain a hearing on his complaint. If the possible refusal of the
General Counsel to issue a complaint is a prominent reason for refusing to preempt the States, I should think that, a fortiori, his inability to act at all is at least
as great a justification for doing away with pre-emption in this situation.
119 Finally, it must be mentioned that in precluding the aggrieved party from a
hearing, we are following a particularly disfavored course. The importance in
our jurisprudence of the opportunity for a hearing need not be reviewed, but at
the very least it teaches that where persons with otherwise justiciable claims
cannot obtain a hearing under the law, the law is subject to close scrutiny to
discover the circumstances compelling this result. There is precious little in the
Garmon doctrine that justifies its existence as to 7 activities under this test.
Certainly neither the evidence of congressional intent nor the presumed but
overdrawn interest in uniformity is adequate to justify denial of a hearing.
120 Most cases concerning the hearing requirement are those where some adverse
consequence is visited upon the individual unless he can explain his side of the
story, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), or
where there is continuing conflict and dissatisfaction with no tribunal available
to fashion relief. Cf. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28
L.Ed.2d 113 (1971). The problems seem similar to those facing us here. In a
7 case, the employer is faced with, for example, picketing that turns away
customers and suppliers and inflicts progressive economic injury on the
employer. For a small businessman with no forum available for relief, the effect
is similar to a wage earner who finds that claims of another have cut his takehome pay in half. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct.
1820, 23 L.Ed.2d 349 (1969).
The majority's treatment of this important issue is deficient. It says only that
121 treating judicial power to deal with arguably protected activity different from
the power to deal with prohibited activity would be 'unsatisfactory,' since
'(b)oth areas equally involve conduct whose legality is governed by federal law,
the application of which Congress committed to the Board, not courts.' Ante, at
290. I have no quarrel with the first pointby definition federal law will
determine if federal law protects the conduct from state proscription; but I
hardly see how that alone pre-empts state courts. See Dowd Box, Lucas Flour,
Smith v. Evening News; Local 20 Teamsters, Chauffeurs and Helpers Union v.
Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280 (1964). As to the second
point, the fact is that Congress has not committed the arguably protected area
exclusively to the Board. It has provided no mechanism for 7 cases to get
before the Board except where conduct threatens 7 rights; nor has its
functionary, the Board, opened a path to its door for those who seek to ascertain
whether conduct threatening them is truly protected by federal law and hence
unassailable under local law. Congress found the no-man's land created by
Guss unacceptable precisely because there was no way to have rights
determined. In terms of congressional intention I find it unsupportable to hold
that one threatened by conduct illegal under state law may not proceed against
it because it is arguably protected by federal law when he has absolutely no
lawful method for detemining whether that is actually, as well as arguably, the
case. Particularly is this true where the dispute is between a union and its
members and the latter are asserting claims under state law bases on the union
constitution. I would permit the state court to entertain the action and if the
union defends on the ground that its conduct is protected by federal law, to pass
on that claim at the outset of the proceeding. If the federal law immunizes the
challenged union action, the case is terminated; but if not, the case is
adjudicated under state law.
122 Mr. Justice BLACKMUN also dissents for the basic reasons set forth by Mr.
Justice DOUGLAS and Mr. Justice WHITE in their respective dissenting
opinions.
The local and its parent are, of course, separate legal entities for many purposes
and were joined as codefendants below so that each appears as a petitioner in
this Court. However both will be jointly described throughout this opinion as
'the petitioner' or 'the Union' since the parent was held liable on the theory that
it was responsible for the acts of the local here involved, not on the basis of any
separate acts committed only by the parent.
Because the Idaho courts treated as irrelevant the actual motivation for the
Union's conduct, see Part III, infra, the trial court did not incorporate in its
formal findings of fact and conclusions of law any reference to this checkoff
dispute. However, some such evidence was allowed at trial, as well as
testimony about the Union's past practice regarding dues-delinquent members,
on the theory that this might ultimately bear on the issue whether Lockridge
had properly exhausted his administrative remedies. The trial judge in his initial
memorandum decision, however, did indicate his belief that 'the true facts are'
as stated in the text accompanying this footnote.
It appears that at least one other person, Elmer Day, was similarly suspended
from membership in the Union and discharged from Greyhound. On November
12, 1959, he filed a formal charge with the Board's Regional Director. On
December 15, 1959, the Director advised Day, by letter, that 'it appears that,
because there is insufficient evidence of violations, further proceedings are not
warranted at this time. I am therefore refusing to issue Complaint in these
matters.' The Director further informed Day that 'you may obtain a review of
this action by filing a request for such review with the General Counsel of the
National Labor Relations Board * * *.' Day did not seek review. Instead, he
filed suit against the Union in the Circuit Court of Multnomah County, Oregon,
for tortious interference with employment, and obtained a jury award for
general and punitive damages. On appeal, the Supreme Court of Oregon (two
judges dissenting) reversed, holding the conduct complained of to be within the
Board's exclusive jurisdiction. Day v. Northwest Division 1055, 238 Or. 624,
389 P.2d 42 (1964). (Some of these facts are taken from the dissenting opinion
in that case.)
For a discussion of these problems that formed a backdrop for the federal act,
see H. Wellington, Labor and the Legal Process, c. 1 (1968). See also Cox,
Federalism in the Law of Labor Relations, 67 Harv.L.Rev. 1297, 13021304,
13151317 (1954).
and employers, he expressly argues that state power to regulate union conduct
harmful to its members that is within the compass of the National Labor
Relations Act should be unlimited, except by the obvious qualification that
States may not punish conduct affirmatively protected by federal law. Thus, in
his view, when it enacted the NLRA, Congress would have fully served those
interests it intended to promote in the conduct of union-member relations had it
simply declared that the States may not proscribe certain, defined conduct.
Certainly, he is prepared to adopt a judicial construction of the Act that is
consistent only with such a view of congressional intent. At bottom, what his
position seems to imply is that giving the National Labor Relations Board
jurisdiction to enforce federal law regulating the use of union security clauses
was largely, if not wholly, without rational purpose. As we have explained at
some length above, we do not understand how courts may properly take such a
limited view of congressional intent in the face of legislation that is in fact
much more wide ranging, and in the absence of a contrary expression of
intention from Congress itself.
Further, Mr. Justice WHITE apparently regards the remedial aspects of the
federal scheme as unimportant to those who designed it. For example, assuming
arguendo that petitioner's conduct was prohibited under both federal and state
law, he would deem it of no national significance if one State punished such
conduct with a jail sentence, and another utilized punitive damages, while the
NLRB merely awarded back pay. His position apparently is that Congress
considered any state tribunal equally capable, with the Board, of assessing the
appropriateness of a given remedy and was unconcerned about disparities in the
reactions of the States to unlawful union behavior. Thus argument, too, seems
incompatible with the simple fact that Congress committed enforcement of the
federal law here involved to a centralized agency.
For these reasons, Mr. Justice WHITE's analogies do not persuade us. Unlike
the problem here under review, Congress did not put enforcement of the LaborManagement Reporting and Disclosure Act of 1959 into the hands of the Board.
73 Stat. 519. And it affirmatively expressed an intention that the Board not
possess pre-emptive jurisdiction over suits to enforce collective bargaining
agreements. See Part III, infra.
6
The objections raised to this latter point, post, at 325 332 (WHITE, J.,
dissenting), seem largely irrelevant to the case under review. This is not a
situation where the sole argument for pre-emption is that the union's conduct
was arguably protected. Clearly, if the facts are as respondent believes them to
be, there is ample reason to conclude that petitioner probably committed an
unfair labor practice.
Garmon itself recognized that Russell permitted state courts 'to grant
compensation for the consequences, as defined by the traditional law of torts, of
conduct marked by violence and imminent threats to the public order.' 359
U.S., at 247, 79 S.Ct., at 781. However, whereas the Court in Russell had
justified that result principally upon the broad grounds that state law not
specifically relating to labor relations per se was not pre-empted by the Act, the
Court in Garmon restated this result as dictated by 'the compelling state interest,
in the scheme of our federalism, in the maintenance of domestic peace (which)
is not overridden in the absence of clearly expressed congressional direction.'
Ibid. It is, of course, this latter and narrower rationale that survives today.
It may be that a similar exception would arise where the Board affirmatively
indicates that, in its view, pre-emption would not be appropriate. Cf. post, at
310312, 319 n. 2 (WHITE, J., dissenting). As the Board's amicus brief in the
instant case makes clear, no such question is now before us.
Indeed, Mr. Justice WHITE'S dissenting opinion fails to demonstrate the need
for such a departure from our traditional judicial role. On the contrary, he
affirmatively establishes that Congress has taken an active, conscious role in
apportioning power to deal with controversies implicating federal labor law
among various competent tribunals.
For the backlog of the Board see 34th Annual Report of NLRB for fiscal year
1969. Table 1, p. 196, shows the following number of unfair labor practice
cases:
Pending July 1, 1968................................... 7,377
Received fiscal 1969.................................. 18,651
On docket fiscal 1969................................. 26,028
Closed fiscal 1969.................................... 18,939
Pending June 30, 1969................................. 7.089
Table 8, p. 212, shows that the 18,939 unfair labor practice cases in 1969 were
closed as follows:
Before issuance of complaint........................ 16,135
After issuance of complaint,
before opening of hearing........................... 1,251
After hearing opened, before
issuance of Trial Examiner's
decision.............................................. 186
After Trial Examiner's
decision, before issuance of
Board decision........................................ 134
After Board order adopting
Trial Examiner's decision in
absence of exceptions.. 131
Since we have yet to rule on the reviewability of the refusal of the General
Counsel to act, that route might be open although at present the authority is to
the contrary. See A. Cox & D. Bok, Labor Law 138 (7th ed. 1969).
Under 10(c) of the Act, 29 U.S.C. 160(c), the Board can award back pay
against an employer, Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct.
845, 85 L.Ed. 1271 and the Board will order back pay against a union where it
causes an employer to discriminate against an employee. See International
Association of Heat & Frost Insulators, Local 84, 146 N.L.R.B. 660; United
Mine Workers (Blue Diamond Coal Co.), 143 N.L.R.B. 795.
This obviously does not apply unless the parties have agreed to arbitrate. Cf.
Smith v. Evening News Assn., 371 U.S. 195, 196 n. 1, 83 S.Ct. 267, 268, 9
L.Ed.2d 246 (1962).
With all respect, the majority's attempt to distinguish the instant case from
Gonzales is unpersuasive. According to the majority, 'The reasons for Gonzales'
deprivation of union membership had nothing to do with matters of
employment, while Lockridge's cause of action and claim for damages were
based solely upon the procurement of his discharge from employment.' Ante, at
296. In the first place, Lockridge squarely alleged that his damages had been
caused by suspension from union membership contrary to the constitution and
laws of the union; his cause of action was bottomed upon this breach of duty by
the union. More importantly, it is inaccurate to imply, as the foregoing quoted
statement does, that Lockridge is somehow different from Gonzales in that
Gonzales' 'deprivation of union membership' did not result in his loss of
employment. The Gonzales Court said, 'The evidence adduced at the trial
showed that plaintiff, because of his loss of membership, was unable to obtain
employment and was thereby damaged. * * * (T)his damage was not charged
nor treated as the result of an unfair labor practice but as a result of the breach
of contract.' 356 U.S., at 622 n., 78 S.Ct., at 926 (Quoting the California court's
opinion.) (Emphasis added.)
4
Not only were the rights and obligations created by the LMRDA made
supplemental to state law, but large areas of union-member relations were left
untouched. For instance, Title I provides that 'nothing herein shall be construed
to impair the right of a labor organization to adopt and enforce reasonable rules
as to the responsibility of every member toward the organization as an
institution * * *.' 101(a)(2), 73 Stat. 522, 29 U.S.C. 411(a)(2). Precisely
what a union member may be required to do as part of his 'responsibility * * *
toward the organization as an institution' is obviously far ranging, and Congress
could no doubt have defined those responsibilities had it chosen to do so. For
another instance, Congress protected the right of the union member to sue a
labor organization, but conditioned this on whatever exhaustion of 'reasonable
hearing procedures * * * within such organization' the union may require.
101(a)(4), 29 U.S.C. 411(a)(4). When compared to the step-by-step statutory
procedure required for the adjudication of unfair labor practices, 29 U.S.C.
160, it is clear that Congress meant to leave some flexibility to the unions in
dealing with member complaints. Still other examples may be seen by noting
what Congress omitted even from mention. Perhaps most important of all in
this context is the fact that Congress provided for no central agency, such as it
had in the NLRA, to administer the Act. Although the Secretary of Labor has in
some respects a major role in implementing the Act, disputes arising under the
Act are for the courts in the first instance.
The majority's opinion simply refuses to face this issue. There is no 'absence of
a contrary expression of intention from Congress,' as the majority contends. See
ante, at 288, n. 5. When Congress addressed itself to union-member relations as
such it specifically preserved existing state remedies even though there may be
federal remedies to redress the same conduct.
Perhaps the tools with which the Board can fashion relief in this area are
already at hand, in the form of the declaratory order. Such an order is binding
on the agency and is judicially reviewable. Red Lion Broadcasting Co. v. FCC,
395 U.S. 367, 372 n. 3, 89 S.Ct. 1794, 1797, 23 L.Ed.2d 371 (1969); Frozen
Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910
(1956); Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct.
754, 83 L.Ed. 1147 (1939); Pennsylvania R. Co. v. United States, 363 U.S. 202,
80 S.Ct. 1131, 4 L.Ed.2d 1165 (1960). The NLRA gives the Board 'authority *
* * to make, amend, and rescind, in the manner prescribed by the
Administrative Procedure Act, such rules and regulations as may be necessary
them to the Board. If the Board refused to hear a dispute alleging an unfair
labor practice because it wished to encourage arbitration, but ignored the fact
that the parties had no arbitration clause in their contract, we could hardly
consider arbitration to have been encouraged. But, with all respect, the Court's
opinion today is just as exasperating.
Similarly, in holding that alleged breaches of the union's duty of fair
representation were not pre-empted, Vaca v. Sipes, supra, the Court was
apprehensive that the worker would be without a forum if the General